Askari Hadi Ali Augustine Imam & ANR. Vs. State (Delhi Admn.) & ANR.
 INSC 475 (3 March 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 416
OF 2009 [Arising out of Special Leave Petition (Criminal) No. 5791 of 2005]
SYED ASKARI HADI ALI AUGUSTINE IMAM & ANR. ... APPELLANTS VERSUS
Effect of pendency of a probate proceeding vis-`-vis a criminal
case involving allegations of forgery of a Will is the question involved in
this appeal. It arises out of a judgment and order dated 23.7.2005 passed by a
2 learned single judge of the Delhi High Court in Criminal Revision No. 184 of
Before embarking on the said legal question, we may notice the
factual matrix involved herein.
Shamim Amna Imam (testatrix) indisputably was the owner of the properties in
question. Allegedly, she executed a Will in favour of the appellants on
3.5.1998. She expired on 23.5.1998.
heir was one Smt. Syeda Mehndi Imam (`Syeda' for short), the mother of the
3 On or
about 23.1.1999, Syed Askari Hadi Ali Augustine Imam (`Askari' for short) filed
an application before the office of the Sub- Registrar Hazaribagh in the State
of Jharkhand for registration of the said Will dated 3.5.1998. He also applied
before the Delhi Development Authority (DDA) for grant of mutation in respect
of the property situated at A-4, Chirag Co-operative Housing Society Limited
known as Chirag Enclave, New Delhi on or about 25.2.1999 in view of the Will
dated 3.5.1998. Indisputably, Syeda also made an application to the DDA on
23.4.1999 for grant of mutation in her favour.
about 17.7.2000, the said Authority informed `Askari' that his request for
mutation could not be acceded to as (1) the appellant could not produce the
original copy of the Will dated 3.5.1998; (2) the property in question was
under the possession of Shri M.C. Reddy and Shri M.H. Reddy, and (3) Title Suit
(T.S. No. 262 of 1991) filed by testatrix against the appellant was pending in
the civil court in Hazaribagh.
appellant approached Permanent Lok Adalat (PLA) of the DDA, which by an award
dated 20.2.2001 directed DDA to grant mutation in his favour.
filed a writ petition marked as Writ Petition (C) No. 2263 of 2002 before the
Delhi High Court for quashing of the said order dated 20.2.2001 of the PLA in
pursuance whereof further proceedings before the PLA was directed to be stayed
by an order 3.5.2002. Aggrieved thereby, Askari filed Writ Petition (C) No.
3579 of 2002, which has been dismissed by a learned single judge of the same
High Court by an order dated 8.4.2003. Writ Petition (C) No. 2263 of 2002 filed
by Syeda has been allowed by an order dated 29.9.2003, holding:
am thus of the considered view that the impugned direction dated 20.2.2001
could not have been passed by the Permanent Lok Adalat and the same is hereby
quashed. Further, no purpose would be served in continuation of the proceedings
before a Permanent Lok Adalat in view of the disputes not being capable of
reconciliation till such time as the right of Respondent No.2 to the property
in question in pursuance to the bequeath made under the will in dispute is
finally adjudicated upon. It has already been held by this Court in Smt. Janak
(2003) DLT 789 that in case of such disputed questions of title, and mutation
being asked for, it is appropriate that the disputes of title be adjudicated in
appropriate civil procedure and no direction be issued to mutate the property
in the name of a party."
preferred thereagainst before the Division Bench of High Court was dismissed. A
Special Leave Petition filed thereagainst has also been dismissed by this
Indisputably Syeda filed a civil suit in the court of Subordinate Judge, Patna,
which was marked as Civil Suit No. 71 of 2000, inter alia, questioning the
genuineness of the said will based on which the appellants had claimed mutation
in respect of the property at Delhi.
also filed a criminal complaint on or about 19.9.2002 against the appellants
under Sections 420/468/444/34 IPC in Greater Kailash-I, New Delhi, Police Station
alleging that the Will dated 3.5.1998 had been forged by the appellants.
matter was investigated into and the disputed Will was sent for examination by
the experts to the Forensic Science Laboratory and the same was found to be
the documents were carefully and thoroughly examined with scientific
instruments such as Stereo Microscope, Video Spectral Comparator- IV,
Docucenter, VSC-2000/HR and Poliview System etc. under different lighting
conditions and I am of the opinion that:
persons who wrote red enclosed signatures stamped and marked A1 to A4 did not
write the red enclosed signatures similarly stamped and marked Q1 and Q2, for
the following reasons:
admitted signatures marked A1 to A4 are freely written, show natural variations
and normal consistency among themselves which are observed 6 in the genuine
signatures of an individual executed over a period of time under varying
questioned signatures marked Q1 & Q2 on the other hand are slow and drawn
in their execution exhibit pen-lift at unusual places, stubbed finish and both
the signatures marked Q1 and Q2 are superimposed over each other. In addition
to these divergences are also observed between the questioned and standard
signatures in the detailed execution of various characters such as - nature of
commencement and movement between two body parts of `S', isolated nature and
location of `h', movement in the lower body part of `h', movement in the
shoulders of `m' and manner of combining `m' with `i' and `i' with the terminal
character `m', nature and direction of the finish of terminal part of `m' in
the word `Shamim' as observed in Q1 & Q2 is nowhere observed in standards,
leftward location of `I-dot' as observed in Q1 & Q2 is also found different
in standards; manner of execution of `A', nature of the apex of `A', nature of
commencement, shape and direction of the commencing part of `m' as observed in
Q1, Q2 is also nowhere observed in standards; manner of combining `m' with `n'
and omission of character `e' as observed in Q1, Q2 is also nowhere observed in
standards, nature and shape of the shoulder of `n', movement in their
and shape of the oval of `a', nature and direction in the terminal part of `a'
as observed in questioned signatures is also nowhere observed in standard
signatures; habit of writing word `Imam' in questioned signatures is also
nowhere observed in standards.
aforesaid divergences are fundamental in nature and beyond the range of natural
variations and intended disguise and when considered collectively they lead me
to the above said opinion."
Cognizance of offences had been taken in the year 2002.
were granted anticipatory bail by the learned Additional Sessions Judge, New
Delhi by an order dated 16.11.2002.
about 30.1.2003, appellants filed an application for grant of probate being
Testamentary Case No. 1 of 2003 in respect of the Will dated 3.5.1998 before
the Jharkhand High Court under Section 276 of the Indian Succession Act. We
may, however, notice that in the aforementioned Testamentary Suit, Syeda was
not originally impleaded as a party. The court, however, suo motu directed
issuance of notice. She was impleaded as a party only on 20.9.2001.
Syeda on or about 9.9.1999 executed a Will bequeathing her right, title and
interest in the property in favour of Mr. Faiz Murtaza Ali ("Faiz"
for short). She died on 22.2.2004. After her death Faiz claimed himself to be
her legal heir on the strength of the said registered will dated 9.9.1999.
Indisputably, appellants preferred Writ Petition (Criminal) No. 636 of 2004
before the Delhi High Court for quashing of the FIR dated 19.9.2002, which by
reason of an order dated 29.7.2004 has been disposed of, stating:
petitioners, however, will be at liberty to move the trial court by way of
moving an application for stay of the criminal trial pending adjudication of
the question of genuineness of the Will by the Civil Court...."
on or on the basis thereof, the appellants filed an application under Section
309 of the Code of Criminal Procedure, 1973 before the learned Metropolitan
Magistrate seeking stay of proceedings of the criminal case, which has been
dismissed by an order dated 10.2.2005, stating:
perusal of the case shows that the accused have been charge sheeted for the
offences under Section 420/468/448/34 IPC and during the investigation the
documents including the alleged Will was seized by the IO and the same was sent
to CFSL for expert opinion and it has been opined that the alleged Will was a
forged one and on the basis of the said opinion the Hon'ble High Court had
already opined in the order dated 29.7.2004 that there were no good grounds for
quashment of the FIR and the proceedings arising out of the same, and the
petition for quashing of the FIR was dismissed and the petitioners were given
liberty by the Hon'ble High Court to move the trial court by way of a proper
applications for stay of criminal trial pending adjudication of the question of
the genuineness of the Will by the Civil Court. In the said order, only liberty
has been granted to the applicants and the trial court has been directed 9 only
to dispose of the present application in accordance with law."
thereby and dissatisfied therewith, appellants preferred Criminal Revision No.
184 of 2005 before the Delhi High Court, which has been dismissed by reason of
the impugned judgment.
Indisputably, Faiz, the nephew of the testratrix filed Caveat
Petition No. 61 of 2005 in Testamentary Case No.1 of 2003 before the Jharkhand
High Court, which was dismissed by a learned single judge by an order dated
4.1.2008 whereagainst L.P.A. No. 32 of 2008 was preferred but was dismissed by
a Division Bench of the same Court by an order dated 2.4.2008, inter alia,
the appellant - caveator is neither the brother of the testatrix, nor the
descendant of the brother or the sister of the testatrix. The mere fact that
the testatrix predeceased her mother would not entitle the descendant of the
brother of the said mother of the testatrix to have caveatable interest to
implead himself as one of the parties in the probate proceedings. It is
contended that several litigations are going on between the parties with regard
to the properties inclusive of the properties which are the subject-matter of
the Will sought to be probated in the testimony case and in those cases, the
petitioner - caveator has been allowed to be impleaded. Merely because the
petitioner - appellant has been impleaded or substituted in other pending suits
with reference to the disputes over the properties including the 10 properties
which are the subject matter of the Will, he cannot claim the right to have
before us, an application for impleadment has been filed, which has been
allowed by an order dated 27.8.2007.
Indisputably, the property at A-4, Chirag Co-operative Housing Society
Limited known as Chirag Enclave, New Delhi was mutated in the name of said Faiz
by an order dated 12.4.2006. Askari and Sayed Akabir Hussain filed writ
petitions thereagainst. The said writ petitions also were dismissed.
however, stated at the Bar that the review application has been allowed.
We have noticed hereinbefore that the appellant filed an
application for quashing of the FIR which was, however, dismissed by an order
dated 29.7.2004 observing that the appellants would be at liberty to move the
trial court by way of moving an application for stay of the criminal trial
pending adjudication of the question of the genuineness of the Will by the
Mr. Dinesh Dwivedi, learned Senior Counsel appearing on behalf of
the appellants, would urge:
judgment in a probate proceeding being a judgment in rem as envisaged under
Section 41 of the Indian Evidence Act, the criminal proceedings should have
been directed to be stayed.
learned trial judge as also the High Court committed a serious error insofar as
they failed to take into consideration that the application under Section 309
of the Code of Criminal Procedure was dismissed on the same ground on which the
application for quashing the proceedings had been dismissed.
Mr. A. Sharan, learned Additional Solicitor General appearing for
State and Dr. A.M. Singhvi, learned Senior Counsel appearing on behalf of the
impleaded respondent, however would support the impugned judgment.
Indisputably, in a given case, a civil proceeding as also a
criminal proceeding may proceed simultaneously. Cognizance in a criminal 12
proceeding can be taken by the criminal court upon arriving at the satisfaction
that there exists a prima facie case.
question as to whether in the facts and circumstances of the case one or the
other proceedings would be stayed would depend upon several factors including
the nature and the stage of the case.
It is, however, now well settled that ordinarily a criminal
proceeding will have primacy over the civil proceeding. Precedence to a
criminal proceeding is given having regard to the fact that disposal of a civil
proceeding ordinarily takes a long time and in the interest of justice the
former should be disposed of as expeditiously as possible.
in this behalf has been laid down in a large number of decisions. We may notice
a few of them.
Sheriff & anr. vs. State of Madras & Ors. [AIR 1954 SC 397], a
Constitution Bench of this Court was seized of a question as to whether a civil
suit or a criminal case should be stayed in the event both are pending;
opined that the criminal matter should be given precedence.
regard to the possibility of conflict in decisions, it was held that the law
envisages such an eventuality when it expressly refrains from making the
decision of one Court binding on the other or even relevant, except for certain
limited purposes, such as sentence or damages. It was held that the only
relevant consideration was the likelihood of embarrassment.
primacy is to be given to a criminal proceeding, indisputably, the civil suit
must be determined on its own merit, keeping in view the evidences brought
before it and not in terms of the evidence brought in the criminal proceeding.
question came up for consideration in K.G. Premshanker vs.
of Police and anr. [(2002) 8 SCC 87], wherein this Court inter alia held:
What emerges from the aforesaid discussion is -- (1) the previous judgment
which is final can be relied upon as provided under Sections 40 to 43 of the
Evidence Act; (2) in civil suits between the same parties, principle of res
judicata may apply;
(3) in a
criminal case, Section 300 CrPC makes provision that once a person is convicted
or acquitted, he may not be tried again for the same offence if the conditions
mentioned therein are satisfied; (4) if the criminal case and the civil
proceedings are for the same cause, judgment of the civil court would be
relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot
be said that the same would be conclusive except as provided in Section 41.
Section 41 provides 14 which judgment would be conclusive proof of what is
Further, the judgment, order or decree passed in a previous civil proceeding,
if relevant, as provided under Sections 40 and 42 or other provisions of the
Evidence Act then in each case, the court has to decide to what extent it is
binding or conclusive with regard to the matter(s) decided therein. Take for
illustration, in a case of alleged trespass by A on B's property, B filed a
suit for declaration of its title and to recover possession from A and suit is
decreed. Thereafter, in a criminal prosecution by B against A for trespass,
judgment passed between the parties in civil proceedings would be relevant and
the court may hold that it conclusively establishes the title as well as
possession of B over the property. In such case, A may be convicted for
trespass. The illustration to Section 42 which is quoted above makes the
position clear. Hence, in each and every case, the first question which would
require consideration is -- whether judgment, order or decree is relevant, if
relevant -- its effect. It may be relevant for a limited purpose, such as,
motive or as a fact in issue. This would depend upon the facts of each
however, significant to notice that the decision of this Court in M/s Karam
Chand Ganga Prasad & anr. etc. vs. Union of India & ors.
SCC 694], wherein it was categorically held that the decisions of the civil
courts will be binding on the criminal courts but the converse is not true, was
Hence, the observation made by this Court in V.M. Shah case that the finding
recorded by the criminal court stands superseded by the finding recorded by the
civil court is not correct enunciation of law. Further, the general
observations made in Karam Chand case are in 15 context of the facts of the
case stated above. The Court was not required to consider the earlier decision
of the Constitution Bench in M.S. Sheriff case as well as Sections 40 to 43 of
the Evidence Act."
Axiomatically, if judgment of a civil court is not binding on a
criminal court, a judgment of a criminal court will certainly not be binding on
a civil court. We have noticed hereinbefore that Section 43 of the Evidence Act
categorically states that judgments, orders or decrees, other than those
mentioned in sections 40, 41 and 42 are irrelevant, unless the existence of
such judgment, order or decree, is a fact in issue, or is relevant under some
other provisions of the Act. No other provision of the Evidence Act or for that
matter any other statute has been brought to our notice.
Constitution Bench of this Court had the occasion to consider a similar
question in Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr.
[(2005) 4 SCC 370] wherein it was held:
is another consideration which has to be kept in mind. Sub-section (1) of
Section 340 CrPC contemplates holding of a preliminary enquiry. Normally, a
direction for filing of a complaint is not made during the pendency of the
proceeding before the court and this is done at the stage when the proceeding
is concluded and the final judgment is rendered. Section 341 provides for an
appeal against an order directing filing of the complaint. The hearing and
ultimate decision of the appeal is bound to take time. Section 343(2) confers a
discretion upon a court trying the complaint to adjourn the hearing of the case
if it is brought to its notice that an appeal is pending 16 against the
decision arrived at in the judicial proceeding out of which the matter has
arisen. In view of these provisions, the complaint case may not proceed at all
for decades specially in matters arising out of civil suits where decisions are
challenged in successive appellate fora which are time-consuming. It is also to
be noticed that there is no provision of appeal against an order passed under
Section 343(2), whereby hearing of the case is adjourned until the decision of
the appeal. These provisions show that, in reality, the procedure prescribed
for filing a complaint by the court is such that it may not fructify in the actual
trial of the offender for an unusually long period. Delay in prosecution of a
guilty person comes to his advantage as witnesses become reluctant to give
evidence and the evidence gets lost. This important consideration dissuades us
from accepting the broad interpretation sought to be placed upon clause
inter alia on M.S. Sheriff (supra), it was furthermore held:
Coming to the last contention that an effort should be made to avoid conflict
of findings between the civil and criminal courts, it is necessary to point out
that the standard of proof required in the two proceedings are entirely
different. Civil cases are decided on the basis of preponderance of evidence
while in a criminal case the entire burden lies on the prosecution and proof
beyond reasonable doubt has to be given.
neither any statutory provision nor any legal principle that the findings
recorded in one proceeding may be treated as final or binding in the other, as
both the cases have to be decided on the basis of the evidence adduced
question yet again came up for consideration in P. Swaroopa Rani vs. M. Hari
Narayana @ Hari Babu [AIR 2008 SC 1884], wherein it was categorically held:
"13. It is, however, well-settled that in a given case, civil proceedings
and criminal proceedings can proceed simultaneously. Whether civil proceedings
or criminal proceedings shall be stayed depends upon the fact and circumstances
of each case."
Mr. Dwivedi, however, would urge that in a case of this nature
Section 41 of the Indian
Evidence Act, 1872 would be applicable. Mr. Dwivedi
would in support of his aforementioned contention place strong reliance on
Sardool Singh & Anr. vs. Smt. Nasib Kaur [1987 (Supp.) SCC 146],
Commissioner of Income Tax, Mumbai vs. Bhupen Champak Lal Dalal & anr.
[(2001) 3 SCC 459] and Surinder Kumar & ors. vs. Gian Chand & ors. [AIR
1957 SC 875]. Section 41 of the Indian Evidence Act reads as under:
- Relevancy of certain judgments in probate, etc., jurisdiction. -- A final judgment,
order or decree of a competent Court, in the exercise of probate, matrimonial
admiralty or insolvency jurisdiction which confers upon or takes away from any
person any legal character, or which declares any person to be entitled to any
such character, or to be entitled to any specific thing, not as against any
specified person but absolutely, is relevant when the existence of any such
legal character, or the title of any such person to any such thing, is
judgment, order or decree is conclusive proof- 18 that any legal character
which it confers accrued at the time when such judgment, order or decree came
legal character, to which it declares any such person to be entitled, accrued,
to that person at the time when such judgment, order or decree declares it to
have accrued to that person; that any legal character which it takes away from
any such person ceased at the time from which such judgment, order or decree
declared that it had ceased or should cease; and that anything to which it
declares any person to be so entitled was the property of that person at the
time from which such judgment, order or decree declares that it had been or
should be his property."
about a judgment. Section 41 of the Evidence Act would become applicable only
when a final judgment is rendered. Rendition of a final judgment which would be
binding on the whole world being conclusive in nature shall take a long time.
As and when a judgment is rendered in one proceeding subject to the
admissibility thereof keeping in view Section 43 of the Evidence Act may be
produced in another proceeding. It is, however, beyond any cavil that a
judgment rendered by a probate court is a judgment in rem. It is binding on all
courts and authorities. Being a judgment in rem it will have effect over other
19 judgments. A judgment in rem indisputably is conclusive in a criminal as
well as in a civil proceeding.
however, notice that whether a judgment in rem is conclusive in a criminal
proceeding or not, is a matter of some doubt under the English law.
and Bridgman, Taylor of Evidence, Vol. 2, in S.1680 notes that `whether a
judgment in rem is conclusive in a criminal proceeding is a question which
admits of some doubt'. It is, however, concluded that it is said that nothing
can be more inconvenient or dangerous than a conflict of decisions between
different courts, and that, if judgments in rem are not regarded as binding
upon all courts alike, the most startling anomalies may occur.
judge Bench of this Court had the occasion to consider the legal effect of a
judgment vis-`-vis Section 41 of the Evidence Act in Surinder Kumar & ors.
vs. Gian Chand & ors. [AIR 1957 SC 875]. Kapur, J. speaking for the Bench,
is clear that the probate was applied for and obtained after the judgment of
the High Court and therefore could not have been produced in that Court. The
judgment of the Probate Court must be 20 presumed to have been obtained in
accordance with the procedure prescribed by law and it is a judgment in rem.
The objection that the respondents were not parties to it is thus unsustainable
because of the nature of the judgment itself."
question came up for consideration again before this Court in Sardool Singh
& Anr. vs. Smt. Nasib Kaur [1987 (Supp.) SCC 146], wherein it was opined:
civil suit between the parties is pending wherein the contention of the
respondent is that no Will was executed whereas the contention of the
appellants is that a Will has been executed by the testator. A case for grant
of probate is also pending in the court of learned District Judge, Rampur. The
civil court is therefore seized of the question as regards the validity of the
Will. The matter is sub judice in the aforesaid two cases in civil courts. At
this juncture the respondent cannot therefore be permitted to institute a
criminal prosecution on the allegation that the Will is a forged one. That question
will have to be decided by the civil court after recording the evidence and
hearing the parties in accordance with law. It would not be proper to permit
the respondent to prosecute the appellants on this allegation when the validity
of the Will is being tested before a civil court. We, therefore, allow the
appeal, set aside the order of the High Court, and quash the criminal
proceedings pending in the Court of the Judicial Magistrate, First Class,
Chandigarh in the case entitled Smt. Nasib Kaur v. Sardool Singh. This will not
come in the way of instituting appropriate proceedings in future in case the
civil court comes to the conclusion that the Will is a forged one."
ratio, however, can be culled out therefrom. Why such a direction was issued or
such observations were made do not appear from the said decision.
Herein, however, criminal case had already been instituted. Whether the same
would be allowed to be continued or not is the question.
noticed hereinbefore the decision in K.G. Premshanker (supra). Mr. Dwivedi,
however, would submit that the court therein was concerned with a case
involving Section 42 of the Evidence Act. The learned counsel may be correct as
it was held that Section 41 is an exception to Sections 40, 42 and 43 of the
Act providing as to which judgment would be conclusive proof of what is stated
same effect are the decisions of some of the High Courts.
Daropti vs. Mt. Santi [1929 Lahore 483], it was held:
learned District Judge has held that the will was either a forgery or had been
executed under "undue influence". As regards "undue
neither any plea, nor evidence on the record to support the learned Judge's
these questions could not be raised in 22 the present suit until and unless the
letters of administration granted to Mela Ram was revoked.
held in Komollochun Dutt v.Nilrutten Mandal (1897) 4 Cal. 360, in somewhat
similar circumstances under the Succession Act of 1865, that where it is
alleged that a probate has been wrongly granted, the proper course is to apply
to the Court which granted the probate to revoke the same. The grant of letters
of administration in the present case stands on the same footing. The grant of
letters of administration so long as it subsists is conclusive evidence as
regards the proper execution of the Will and the legal character conferred on
the administrator : vide Ss. 12 and 59, Probate and Administration Act, 1881,
corresponding to Ss.227 and 273, Succession Act, 1925, which now incorporates
that Act, S.41, Evidence Act etc: Babu Lal v. Hari Bakhsh (1918) 13 P.R. 1918;
Venkataratnam v. Ram Mohana Rao (1916) 31 M.L.J. 277; Kishore Bhai Rewa Das v.
Ranchodia (1916) 38 Bom. 427..."
Darbara Singh vs. Karminder Singh & ors. [AIR 1979 Punjab & Haryana
215], it was held:
The provision of sub-section (1) of Section 8 of the Act makes it expressly
clear in unqualified terms that no personal covenant of the guardian shall be
binding on the minor. It means only this that, when looked from the stand point
that the aforesaid interdiction is added at the fag-end of Section 8(1) by way
of proviso to the clause that preceded it, a guardian though well within his
right to enter into a contract for the benefit of the minor, but the said
contract would not be enforceable against the minor even when it was entered
for his benefit and would be voidable at his instance."
Constitution Bench of this Court in Iqbal Singh Marwah & Anr. (supra) also
does not appear to have dealt with this aspect of the matter.
question, however, would be as to whether despite the same should we interfere
with the impugned judgment. We do not think that we should. Firstly, because
the criminal case was instituted much prior to the initiation of the probate
proceeding and secondly because of the conduct of the appellant and the stage
in which the probate proceedings are pending.
aforementioned purpose, it may not be relevant for us to enter into the
disputed question as to whether the Will is surrounded by suspicious
circumstances as the same would appropriately call for decision in the
testamentary proceeding. Pendency of two proceedings whether civil or criminal,
however, by itself would not attract the provisions of Section 41 of the
Evidence Act. A judgment has to be pronounced. The genuineness of the Will must
be gone into. Law envisages not only genuineness of the Will but also
explanation to all the suspicious circumstances surrounding thereto besides
proof thereof in terms of Section 63(c) of the Indian Succession Act, and
Section 68 of the Evidence Act. [See Lalitaben 24 Jayantilal Popat vs.
Pragnaben Jamnadas Kataria & ors. 2009 (1) SCALE 328]
FIR was lodged not only in regard to forgery by the Will but also on the cause
of action of a trespass. Appellant admittedly is facing trial under Section
420, 468 and 448 of the IPC. It is, thus, possible that even if the Will is
found to be genuine and that no case under Section 468 of the IPC is found to
have been made out, appellant may be convicted for commission of other offences
for which he has been charged against, namely, trespass into the property and
cheating. If it is found that the appellant is guilty of trespass, he may be
asked to handover possession of the premises in question to the complainant.
Exercise of such a jurisdiction furthermore is discretionary. As noticed by
several decisions of this Court, including two Constitution Bench decisions,
primacy has to be given to a criminal case. The FIR was lodged on 19.9.2002.
Not only another civil suit is pending, as noticed hereinbefore, but a lis in
relation to mutation is also pending.
the criminal case is pending before the Delhi court, the testamentary suit has
been filed before the Jharkhand High Court. Since 25 2003 not much progress has
been made therein. The Will has not been sent to the handwriting expert for his
opinion, which is essential for determination of the question in regard to the
genuineness of the Will. It is alleged that the Will was registered at
Hazaribagh after the death of the testatrix. For the last seven years in view
of the pendency of the matters before the High Courts in different proceedings
initiated by the appellant, the criminal case has not proceeded, although as
noticed hereinbefore charge-sheet has been filed and cognizance of the offence
has been taken.
therefore, are of the opinion that it is not a fit case where we should
exercise our discretionary jurisdiction under Article 136 of the Constitution
of India having regard to the facts and circumstances of the present case.
the aforementioned reasons, we find no merit in this appeal. The appeal is
dismissed. No costs.
.....................................J. [S.B. Sinha]
.....................................J. [Lokeshwar Singh Panta]
.....................................J. [B. Sudershan Reddy]